Milne v Herald [2022] NSWLEC 1338

Milne v Herald [2022] NSWLEC 1338

The Applicant made reasonable efforts to reach agreement. The camellias T5–T8 were planted in a row near the boundary and formed a hedge to which Pt 2A applied; T6 severely obstructed a valued water view from the Applicant's outdoor terrace, a view the Applicant previously enjoyed. The benefits of pruning the camellias to restore the view outweighed the relatively minor impacts on the Respondent, including privacy impacts, so annual pruning orders were warranted. The dragon trees T1–T4 did not form a hedge because they did not form a dense wall of foliage and were not a species that could be pruned to form a dense screen, so Pt 2A did not apply and the Court lacked jurisdiction to order...

Jurisdiction
Australia
Judgment Date
05 July 2022
Procedural Posture
Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning Obstruction of Views and Sunlight by Trees / Principal Judgment After Hearing
Outcome
Application to remove trees T1–T4 refused; application to prune trees T5–T8 granted.
Legal Topics
['pt 2 a Application' 'obstruction of Views' 'obstruction of Sunlight' 'whether Trees Are Planted So as to Form a Hedge' 'severe Obstruction' 'view Sharing' 'pruning and Removal Orders']
['trees Disputes Between Neighbours' 'land and Environment'] ['pt 2 a Application' 'obstruction of Views' 'obstruction of Sunlight' 'whether Trees Are Planted So as to Form a Hedge' 'severe Obstruction' 'view Sharing' 'pruning and Removal Orders']

Case Brief

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Procedural Posture

Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning Obstruction of Views and Sunlight by Trees / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Applicant made reasonable effort to reach agreement with the Respondent under s 14E(1) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the four camellias T5–T8 were planted on adjoining land so as to form a hedge rising to a height of at least 2.5 metres.' "Whether the camellias severely obstructed a view from the Applicant's dwelling." "Whether the Applicant's interest in mitigating the view obstruction outweighed reasons to avoid interfering with the camellias, including the Respondent's privacy concerns." 'Whether the dragon trees T1–T4 were trees to which Pt 2A applied, including whether they were planted so as to form a hedge.' 'Whether orders should be made to prune T5–T8 and remove T1–T4.']

Ratio Decidendi

The Applicant made reasonable efforts to reach agreement. The camellias T5–T8 were planted in a row near the boundary and formed a hedge to which Pt 2A applied; T6 severely obstructed a valued water view from the Applicant's outdoor terrace, a view the Applicant previously enjoyed. The benefits of pruning the camellias to restore the view outweighed the relatively minor impacts on the Respondent, including privacy impacts, so annual pruning orders were warranted. The dragon trees T1–T4 did not form a hedge because they did not form a dense wall of foliage and were not a species that could be pruned to form a dense screen, so Pt 2A did not apply and the Court lacked jurisdiction to order...

Court Disposition

Application to remove trees T1–T4 refused; application to prune trees T5–T8 granted.

Orders

  • ['The application to remove trees T1–T4 is refused.' 'The application to prune trees T5–T8 is granted.' 'Once every year during July, commencing July 2022, the Respondent, or a suitably experienced and insured contractor engaged and paid for by the Respondent, is to prune the four camellias (T5–T8 in the...